Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36083
1. Introduction
A security guard at the Vallco shopping mall in Cupertino escorted a group of teenagers out of the mall because he recognized one of them, R.R., as having been previously banned from the mall. Once outside, a melee erupted, eventually involving four current or former mall security guards and five male juveniles, including 16-year-old R.R. and his 15-year-old brother K.R., the minor in this case. After a contested jurisdictional hearing, the juvenile court sustained felony charges against both the minor and R.R. for assaulting security guard Stas Plotnikov (count 1), security guard Shawn Johnson (count 2), security guard Jason Robinson (count 3), and former security guard Paul Le (count 4). (Pen. Code, § 245, subd. (a)(1).) The court impliedly found that counts 1 and 3 involved the use of deadly weapons (a rock and a walkie-talkie, respectively). The court further found that the minor personally inflicted great bodily injury on Plotnikov. (§ 12022.7, subd. (a).)
R.R. has appealed separately in appeal number H035715.
Unspecified section references are to the Penal Code.
The court also sustained misdemeanor charges of making criminal threats (count 7; § 422) and obstructing a peace officer (count 10; § 148, subd. (a)(1)). The court found unproven the charges of robbing Jason Robinson of a cell phone (count 5; §§ 211-212, subd. (c)), attempting to dissuade Robinson from reporting a crime (count 6; § 136.1, subd. (b)(1)), criminally threatening Paul Le (count 8), and trespassing (count 9; § 602, subd. (o)).
On appeal the minor contends that the court’s express findings about the cause of Plotnikov’s injuries undermine the conclusion that he personally inflicted great bodily injury. He also contends that the use of deadly weapons was not a natural and probable consequence of hand to hand combat, precluding his liability on an aiding and abetting theory. For the reasons stated below, we will strike the personal infliction finding and affirm the jurisdictional order as so modified.
2. Trial Evidence
On February 18, 2010, Paul Le, a former security guard at the Vallco mall, called Shawn Johnson, who was working as a mall security guard that day, to inform him that R.R., who had been banned from Vallco, was in the mall with several young people. According to the minor, the original group included himself, R.R., Desmond, Salena, and Jordan; they were later joined outside by Devon and Johnny. The minor admitted that he had also been banned from the mall.
Johnson approached the group and told R.R. that he had to leave. R.R responded by repeatedly cursing him, but the group headed toward an exit, and Johnson escorted them out. Le, who had been visiting with friends at the mall, trailed behind the group out of concern for Johnson’s safety. Outside the mall, R.R. threatened to kill Johnson and his family. Le heard the minor tell his brother more than once, “ ‘don’t do it. You don’t want to do this.’ ”
R.R. lifted his right arm as if to throw a punch. Johnson testified that as he brought his own arm up to defend himself, he unintentionally hit R.R. in the mouth with the walkie-talkie he was holding. This triggered a melee. Security guards Plotnikov and Robinson responded to Johnson’s radio calls for assistance.
The minor and his girlfriend Jordan testified that Johnson and R.R. were yelling as they walked out of the mall and that once they were outside, Johnson hit R.R. in the jaw with his walkie-talkie.
Assault on Johnson (Count 2)
R.R. punched Johnson repeatedly. Johnson retreated to the stairs and tried to defend himself. As the fighting continued, Robinson called the sheriff on his cell phone.
The minor and Desmond joined the attack on Johnson. After falling to the ground, Johnson was repeatedly hit and kicked in the back of the head, and he briefly lost consciousness. He did not know who besides Desmond had kicked him.
Assault on Le (Count 4)
Le came down the stairs and grabbed R.R. They tumbled to the ground, where Le held him down. Le eventually released R.R. after Johnny menaced him with an open switchblade knife.
After Le released R.R. and stood up, Desmond attacked him from behind, hitting his head multiple times and knocking him to the ground. Devon punched Le in the face. The minor punched him once. One punch disfigured his forehead.
Assault on Robinson (Count 3)
As Robinson was calling the sheriff, Devon came at him, forcing him to drop his cell phone. Robinson grabbed Devon in a neck lock, and they fell to the ground, where Robinson held him for a few seconds. Robinson let Devon go when he saw Plotnikov on the ground being kicked in the head.
Devon later admitted to Santa Clara County Sheriff’s Detective Shawn Francis that, after his struggle with Robinson, he saw Robinson’s cell phone and radio on the ground. He pocketed the phone and threw the radio at the guard, hitting him in the face. Robinson testified that Devon threw the walkie-talkie at his head from a distance of five feet, but he was able to deflect it with his arm. Robinson also testified that he was kicked at some point, but he did not know by whom.
Assault on Plotnikov (Count 1)
By the time Plotnikov reached the scene, Johnson was on the ground and surrounded. Plotnikov grabbed the minor out of the group around Johnson and took him to the ground with a wrestling move.
According to the minor and his girlfriend, Le had knocked him unconscious with one punch from behind. The minor testified he remembered nothing until he was being choked on the ground by Plotnikov.
A group surrounded Plotnikov, and Plotnikov used the minor’s body as a shield while on the ground. Plotnikov was struck in the head, hands, and upper body at least 20 times. Some of the strikes felt like kicks with steel toed boots; it was possible one of those blows involved a rock. He felt his head getting cut open, and he yelled for help.
Devon admitted to Detective Francis that he hit Plotknikov. Robinson saw R.R. kicking Plotnikov in the back of the head.
Plotnikov held onto the minor until Robinson came over and said it was okay to let him go. The minor then headed to a grassy area where there were rocks.
Plotnikov saw Desmond hitting Le in the head several times, so he grabbed Desmond and put him in a sleeper hold until Desmond passed out.
Johnson saw the minor yelling at Plotnikov to get off Desmond and throwing rocks the size of softballs from a distance of two feet. Johnson recalled seeing two rocks hit Plotnikov’s head.
Robinson saw R.R. kick Plotnikov in the head at least once when he was holding Desmond. Robinson heard Johnson accuse the minor of throwing rocks, and Robinson heard the sound of rocks hitting the pavement. Salena, Johnny’s ex-girlfriend, told Detective Francis that she knew the minor was throwing rocks as she ran away. The minor testified that he picked up a couple of rocks for protection, but he threw them away from the security guards so he would not hurt anyone with them.
Plotnikov testified that no one hit him while he was holding Desmond. He did recall Johnson asking the minor if he was throwing rocks, but he did not recall being hit with a rock.
Plotnikov ended up with a swollen jaw, a sore neck, a bruised left hand, and two staples in the back of his head. Photographs of his injuries were admitted into evidence.
3. Argument And Ruling
The prosecutor made the following argument on the personal infliction enhancement: “[I]t’s the People’s theory that, pursuant to the group beating instruction, if in a particular instance, as we have here, it is unclear how the injury was sustained but it’s clear who the participants were, each and every one of those individuals is liable for the personal infliction of great bodily injury. And that’s why that particular count is charged that particular way. Whether it was done via boot, whether the rock was thrown and missed or thrown and struck, it doesn’t matter. Because we don’t have uncontroverted evidence of how it occurred. We know it occurred, and we know the participants. That’s why the law is present there.”
In making its findings on the various charges, the juvenile court explained that as to count 1, “the court finds the People have proved each and every one of the elements required beyond a reasonable doubt. The Court finds Count 1 to be true. [¶] With respect to the [] GBI allegation on the theory of accomplice action, the Court does not believe that the minor himself is responsible for the great bodily injury that the victim received, but on an accomplice theory, the Court finds the GBI allegation to be true.” As to count 3, the court also found that the People “have proved each of the allegations required beyond a reasonable doubt.” The court sustained other allegations as stated in the introduction above.
Later the same day, the court elaborated on its decision: “The Court also takes into consideration the fact that the minor tried, to the best of his ability, to—to get the situation under control and to get them to, for lack of a better term, to chill out and to stop the escalation of the events. I understand that. The Court also understands the fact that, while the Court’s finding is that the minor threw rocks, that they did not cause the injuries that resulted in the great bodily injury finding made by the Court. The Court also can understand why a brother would get upset in terms of what’s happening to his brother with respect to the—the mall security people.”
4. Standard Of Review
In re Manuel G. (1997) 16 Cal.4th 805 reiterated the rules governing appellate review. “When reviewing a judgment, an appellate court ‘must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence... such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. ’ ” [Citation.]’ [Citation.]” (Id. at p. 822.)
“If the circumstances reasonably justify the juvenile court’s finding, we cannot reverse merely because the circumstances also might support a contrary finding. [Citation.] This rule applies equally to express and implied findings.” (In re Manuel G. 16 Cal.4th at p. 823.)
But findings favorable to the judgment may not be presumed when the trial court has made express factual findings to the contrary. (Cf. People v. Butcher (1986) 185 Cal.App.3d 929, 936-937; see People v. Manning (1973) 33 Cal.App.3d 586, 603.) On appeal, we are bound by the fact-finder’s announced credibility determinations so long as there is substantial evidence to support them.
5. Sufficiency Of The Evidence Of Personal Infliction Of Great Bodily Injury
The minor contends there can be no aiding and abetting liability for personal infliction of great bodily injury under section 12022.7. The enhancement requires a personal application of force, and the juvenile court specifically did not find that the minor personally inflicted great bodily injury on Plotnikov.
Section 12022.7 states in part: “(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.”
In People v. Cole (1982) 31 Cal.3d 568 (Cole), the court concluded that “personally inflicts” means just that, and that the “Legislature intended to impose an additional penalty for causing great bodily injury only on those principals who perform the act that directly inflicts the injury, and that one who merely aids, abets, or directs another to inflict the physical injury is not subject to the enhanced penalty of section 12022.7.” (Id. at p. 571.)
To the extent that the juvenile court found the minor liable on the great bodily injury allegation “on an accomplice theory, ” the finding cannot stand under Cole. “Accomplice theory” is another name for aiding and abetting. (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman).) “Accomplice liability is ‘derivative, ’ that is, it results from an act by the perpetrator to which the accomplice contributed.” (Ibid.) “The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role.” (People v. McCoy (2001) 25 Cal.4th 1111, 1120.)
The Supreme Court has recognized that it may be difficult in a group beating situation to determine who personally inflicted the resulting great bodily injury. In People v. Modiri (2006) 39 Cal.4th 481 (Modiri), the defendant challenged a standardized jury instruction as misapplying Cole. The instruction (CALJIC No. 17.20) stated in pertinent part: “When a person participates in a group beating and it is not possible to determine which assailant inflicted a particular injury, he or she may be found to have personally inflicted great bodily injury upon the victim if (1) the application of unlawful physical force upon the victim was of such a nature that, by itself, it could have caused the great bodily injury suffered by the victim; or (2) that at the time the defendant personally applied unlawful physical force to the victim, the defendant knew that other persons, as part of the same incident, had applied, were applying, or would apply unlawful physical force upon the victim and the defendant then knew, or reasonably should have known, that the cumulative effect of all the unlawful physical force would result in great bodily injury to the victim.” (Id. at p. 490, fn. 6, italics omitted.)
CALCRIM 3160 is the updated version of CALJIC No. 17.20. (Cf. People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1414.) It provides that, to find personal infliction of great bodily injury in a group beating, the prosecutor must prove that a defendant and another person, acting at the same time, assaulted a victim and caused great bodily injury and that the defendant personally used enough physical force that it either (a) actually caused the great bodily injury in combination with the force used by others or (b) could have alone caused great bodily injury.
Modiri concluded that the instruction accurately described two ways of personally inflicting great bodily injury during a group beating. (People v. Modiri (supra) 39 Cal.4th at pp. 486, 493.) Although a defendant must inflict injury him or herself, “ ‘personally’ ” does not mean exclusively or without participation by others. (Id. at p. 493.) “By its own terms, the statute calls for the defendant to administer a blow or other force to the victim, for the defendant to do so directly rather than through an intermediary, and for the victim to suffer great bodily injury as a result.” (Ibid.) “CALJIC No. 17.20 makes clear that the physical force personally applied by the defendant must have been sufficient to produce great bodily injury either (1) by itself, or (2) in combination with other assailants. Both group beating theories exclude persons who merely assist someone else in producing injury, and who do not personally and directly inflict it themselves.” (Id. at p. 494.)
While the statute at issue in Modiri was section 1192.7, subdivision (c)(8), not section 12022.7, it contained the identical language “ ‘personally inflicts great bodily injury.’ ” (Modiri, supra, 39 Cal.4th at p. 492, fn. 9.)
The Attorney General asserts that the juvenile court’s finding can be upheld on the group beating theory endorsed by Modiri based on Johnson’s testimony that the minor was throwing rocks at Plotnikov and hit him twice in the back of the head. The minor contends that the court “clearly rejected” that testimony, instead accepting Plotnikov’s testimony that at the time his head was cut open he was using the minor as a shield.
The juvenile court stated, “while the Court’s finding is that the minor threw rocks, that they did not cause the injuries that resulted in the great bodily injury finding made by the Court.” The court apparently credited part of Johnson’s testimony, but not all of it, in light of Plotnikov’s testimony that he did not remember being struck by a rock and absent other evidence of Plotnikov being struck by rocks.
Were it not for the juvenile court’s express findings, Johnson’s testimony could have provided substantial evidence that the minor personally used force sufficient by itself to cause great bodily injury. However, the court specifically found that the rocks thrown by the minor did not cause Plotnikov’s injuries. Other than throwing rocks, there was no evidence that the minor personally applied force to Plotnikov. Because the trial court’s express findings are at odds with its conclusion that the minor personally inflicted great bodily injury on Plotnikov, that conclusion must be reversed.
6. Sufficiency Of The Evidence Of Deadly Weapons
Count 1 was charged in the conjunctive, alleging that the minor assaulted Plotnikov “with a deadly weapon and instrument other than a firearm, a(n) rock, and by means of force likely to produce great bodily injury.” Similarly, count 3 alleged that the minor assaulted Robinson “with a deadly weapon and instrument other than a firearm, a(n) walkie talkie, and by means of force likely to produce great bodily injury.” Those counts having been sustained in their entirety, the minor challenges the sufficiency of the evidence as to the implied findings regarding the deadly weapons. The minor asserts that because the use of weapons was “not a natural and probable result of the fight, ” he cannot be held responsible for their use by others in his group.
As the Attorney General points out, the court found that the minor himself threw rocks during the fight. He was not an aider and abettor of the activity alleged in count 1, he was the direct perpetrator. The natural and probable consequences doctrine is inapplicable to direct perpetrators. (Cf. People v. Young (2005) 34 Cal.4th 1149, 1201.) As to count 3, however, it was Devon and not the minor who threw the walkie-talkie at Robinson.
People v. McCoy, supra, 25 Cal.4th 1111, 1117, explained: “It is important to bear in mind that an aider and abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ (People v. Prettyman, supra, 14 Cal.4th at p. 260.) Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. (Id. at p. 267.)”
Prettyman explained how the natural and probable consequences doctrine operates in the context of an assault. “If, for example, the jury had concluded that defendant Bray had encouraged codefendant Prettyman to commit an assault on Van Camp but that Bray had no reason to believe that Prettyman would use a deadly weapon such as a steel pipe to commit the assault, then the jury could not properly find that the murder of Van Camp was a natural and probable consequence of the assault encouraged by Bray. (People v. Butts ([1965]) 236 Cal.App.2d [817] at p. 836.) If, on the other hand, the jury had concluded that Bray encouraged Prettyman to assault Van Camp with the steel pipe, or by means of force likely to produce great bodily injury, then it could appropriately find that Prettyman’s murder of Van Camp was a natural and probable consequence of that assault.” (Prettyman, supra, 14 Cal.4th 248, 267.)
In People v. Medina (2009) 46 Cal.4th 913, the court explained that a fatal shooting was a reasonably foreseeable consequence of a verbal challenge and a fistfight involving gang members. (Id. at pp. 920-928.) The majority held that culpability for aiding and abetting does not require knowledge that a fellow gang member is armed. (Id. at pp. 921, 924.) It was enough in that case that the shooter’s gang was a violent one that regularly committed gun offenses, and there was evidence that a participant in the fight called for someone to get a gun. What is reasonably foreseeable in any given case is a factual question that must be resolved in light of the all the facts. (Id. at p. 920.)
We recognize that this is not a gang case and there was no shooting here. There was no evidence that anyone from the minor’s group other than Johnny was armed with a weapon. However, considering the entire melee started when it appeared to the minor’s group that one security guard used a walkie-talkie as a weapon against R.R., it was reasonably foreseeable that a member of the same group would later use an identical object as a weapon against one of the guards.
7. Disposition
The finding that the minor personally inflicted great bodily injury is stricken. As modified, the jurisdictional order is affirmed.